Water managers seek certainty in #ColoradoRiver Basin — @AspenJournalism #CRDseminar #COriver

The end of the tunnel that brings water from Hunter Creek to the Fryingpan River drainage, and then on to the eastern slope. Photo credit: Brent Gardner-Smith, Aspen Journalism.

From Aspen Journalism (Sarah Tory) via The Glenwood Springs Post Independent:

Bringing more certainty to an unruly and unpredictable Colorado River system was a common theme among water managers speaking at the Colorado River District’s annual seminar Friday­­.

Although the drought that has gripped much of the Colorado River basin for the past 16 years has eased up a bit, population growth and the long dry spell have pushed the river’s supplies to the limit, with every drop of water in the system now accounted for.

Meanwhile, the effects of climate change on the Colorado’s future flows are still a big question mark, and it could mean wide variability in the years to come, with periods of punishing drought followed by a sudden record-setting wet year, as California recently experienced.

Bill Hasencamp, general manager of Colorado River resources for the Metropolitan Water District of Southern California, described how in April 2015, snowpack in the Sierras was at an all-time low. But by this spring, it was at an all-time high, after a winter of heavy precipitation.

The change in snowpack eventually lead to huge fluctuations in water prices – from $1,800 per acre-foot at the height of the drought to just $18 per acre-foot this year, Hasencamp said.

That kind of turbulence places enormous pressure on the Colorado River Basin’s big municipalities, which must secure their water supplies for millions of people, said Eric Kuhn, the general manager of the River District, which is based in Glenwood Springs and helps protect Western Colorado’s water resources.

Kuhn is retiring next year and was making his last formal presentation as general manager of the river district. As he heads into retirement, he’s working on a book with author John Fleck about the history of managing the Colorado River and the creation of the Colorado Compact.

“The reality is — and we all have to accept this — big-city providers need certainty,” he said. However, Kuhn said he didn’t think that means more transmountain diversions from the West Slope.

The most obvious source of additional water for cities is agriculture, which holds the lion’s share of senior water rights on the Colorado River, but no one is eager to see rural areas sacrificed for urban growth, Kuhn said.

So, he added, water managers throughout the basin are figuring out ways to adapt 19th century water laws to a 21st century reality.

Cooperative agreements between irrigators and municipalities are one option, providing cities with additional sources of water during dry periods.

Already, a three-year pilot initiative called the System Conservation Pilot Program has shown that farmers and ranchers are open to using less water in exchange for compensation.

Beginning in 2014, four of the big Colorado River Basin municipalities and the Bureau of Reclamation contributed $15 million to fund water conservation projects throughout the basin.

The program was in limbo after this year while officials worked out some issues, but Hasencamp said Friday that the funders have agreed to continue the pilot program for another year, in 2018.

For water managers, these kinds of flexible arrangements, along with rigorous water efficiency, recycling and reuse efforts, are the key to finding “certainty” on an inherently volatile river system.

Still, those solutions will not be easy.

As Bill Trampe, a longtime rancher from Gunnison County, explained, less irrigation often comes with unintended consequences such as diminished return flows to the river and nearby fields.

And as Lurline Underbrink Curran, the former county manager for Grand County, described, efforts to heal the destructive impacts of existing water diversions on the Fraser River, a tributary of the Colorado, means accepting that future diversions will in fact take place.

“We tried to form friendships that would help us do more with what we had,” she said.

California’s Salton Sea presents another dilemma, which reaches back up into Colorado River system.

The salty inland lake, created by an accidental breach in an irrigation canal, is drying up.

Since 2002, the state of California has been paying the Imperial Valley Irrigation District to keep the Salton Sea on life support by delivering 800,000 acre-feet of water, but that initiative expires at the end of this year.

Continuing the water deliveries means using up more of the Colorado River’s dwindling supplies, but letting it dry up means exposing local residents to a lakebed full of toxic dust.

None of these problems is new, but as many of the speakers at the river district’s annual seminar explained, water managers now have more tools than ever before to address those challenges — and new urgency with which to apply them.

Recent successes include the successful negotiation of an updated binational water agreement between the U.S. and Mexico, called Minute 232, that is expected to be signed this month. It will outline how the two countries share future shortages on the Colorado River.

“We’re at a point where we can work together, and the success we’ve had is from collaboration,” said Becky Mitchell, the new director of the Colorado River Conservation Board. “It’s really all hands on deck.”

Aspen Journalism is collaborating with the Glenwood Springs Post Independent, the Aspen Times, the Vail Daily and the Summit Daily News on coverage of rivers and water. More at http://www.aspenjournalism.org.

A look at Vail Valley water rights

From The Vail Daily (Scott N. Miller):

In drought years, holders of the most senior water rights can “call” on those with junior rights. That means junior rights holders have to stop diverting water.

The town of Gypsum was in that situation not long ago.

Town water manager Matt Franklin said senior rights holders taking their allocated water put a significant strain on the town’s ability to provide water to residents.

“Nothing’s more stressful than trying to meet demand when there’s a call on the river and you can only put out a quarter of what you need,” Franklin said.

Gypsum, over the past 20 years or so, has acquired some of the most senior water rights on Gypsum Creek. The most senior rights came from the former Albertson Ranch, now the moribund Brightwater development. Other senior rights came from Cotton Ranch closer to town.

Still, Franklin said, there are some rights senior to the Albertson Ranch rights that can take precedence in April. That month in 2013 — a historic drought year — was tough to cover, Franklin said.

In those dry years, the town has to pull water from farther downstream, and the quality isn’t as good. Treating that water requires more chemicals, more electricity, more manpower … more of just about everything, Franklin said.

GOOD RIGHTS, GOOD SUPPLIES

Still, that town is in good shape today regarding its water inventory. So is most of the rest of the Vail Valley.

Front Range water attorney Glenn Porzac knows more than just about anyone about mountain water. He said local water providers have worked over the years to ensure steady water supplies.

The town of Eagle is a good example, Porzak said. Town officials there “have been very aggressive,” Porzak said. “They approve annexations and developments only with all the water rights. Over time, they’ve really cornered that market.”

Farther east, the Eagle River Water & Sanitation District, along with the Upper Eagle Regional Water Authority, has also put in a lot of effort to ensure steady, stable supplies of water.

Those two entities have separate elected boards, but share staff and other resources. The district and the authority have an integrated system, Porzak said, which allows water to move as needed from roughly Edwards to East Vail.

The third major player in the upper valley is Vail Resorts, which requires water for snowmaking between November and January.

Most of that water supply comes from the Eagle River, but there are a few reservoirs that play crucial roles as streamflows drop between late summer and late winter.

Aurora and Colorado Springs control most of the water from Homestake Reservoir roughly between Red Cliff and Camp Hale. From there, water is pumped to Turquoise Lake near Leadville. Then, water is pumped either into the Arkansas River for Colorado Springs or into the South Platte for Aurora.

But there’s some local water sitting in Homestake, used to ensure streamflows in the Eagle River.

MORE LOCAL SUPPLIES

Near the Climax Mine atop Fremont Pass is the Eagle Park Reservoir, which is used by local providers for streamflows and some supply. Black Lakes, atop Vail Pass, is also used for local supply.

Still, local streams can run almost dry. Porzak said he has 2013 pictures of Gore Creek running at just a trickle. Portions of Brush Creek near Eagle have run almost dry in other drought years.

That’s why the water-pumping systems used by the upper valley water and sanitation district and water authority are crucial to ensuring adequate supplies for everyone.

Another player in the mix of who controls local water is the Colorado River District, which oversees use of the Colorado River from its origin in Rocky Mountain National Park to the Colorado/Utah state line.

Porzak said the river district has contracts to provide water to a number of small developments between Wolcott and Dotsero. The river district also provides some reservoir water to back up systems in Eagle and Gypsum.

Then there’s the most-senior water right in the valley. That one, the only one in the valley that dates to the 1800s, came off the Nottingham Ranch at Avon and serves Beaver Creek.

The Vail Valley’s water supplies are more stable than they were even a few years ago. Starting in about the middle of the 20th century, Front Range cities came to the mountains looking for water to feed their growing communities.

Part of those efforts included buying ranches for their water. Park County — the Fairplay area — is among the most-affected high-mountain areas, since it’s on the eastern side of the Continental Divide.

Denver Water, which bought thousands of acre-feet of mountain water over the years, also purchased water rights at 4 Eagle Ranch north of Wolcott and on the upper Eagle River. There was at one time talk of building a large reservoir near Wolcott.

A few years ago, thanks to an agreement with local providers, Denver gave up those rights, stabilizing the water supplies for local providers.

That cooperation is starting to show up in other parts of the mountains, Porzak said.

“Denver Water and the Western Slope get along pretty well now,” he said. “You’re seeing more cooperation in Summit and Grand counties now.”

Still, Porzak said, “Eagle County is fortunate.”

Colorado’s top water cop says ‘Don’t divert more than you need’

Water leaving a section of the Meeker Ditch, which was curtailed in 2014 by the state division engineer based in Steamboat Springs. The division engineer had found that the ditch operator was diverting more water from the White River than necessary to irrigate hay fields under the ditch.

CRESTED BUTTE — If there was a commemorative coin minted in honor of Colorado water law, the shiny side could be inscribed with the phrase “use it or lose it.”

But the flip side of the coin might read “don’t divert more than you need.”

The second phrase may yet gain currency in Colorado as a new set of internal guidelines about over-diverting, or wasting, water were recently approved and made public by the Colorado Division of Water Resources.

The guidelines, signed by outgoing state engineer Dick Wolfe on June 30 and embraced by the new state engineer Kevin Rein, say “the people of the state have a right to divert water and apply it to beneficial use but do not have a right to divert water and waste it.”

The 11-page guiding document also says, “the goal in any diversion of water should be to divert and convey that amount of water, and only that amount of water, needed to accomplish the intended beneficial use.”

There are many “beneficial uses” of water under state law, but the one most relevant to the waste discussion is using it to irrigate a crop, such as alfalfa.

And the guidelines say “water that is diverted in excess of what is required to accomplish the intended beneficial use is considered wasted and may be curtailed by Division of Water Resources.”

Rein has been with Division of Water Resources for 19 years and was promoted from his position as deputy state engineer to state engineer by Gov. John Hickenlooper in July. Rein said the guidelines have been in the works for some time, were written in a collaborative manner by staff and were in response to a growing number of questions about the issue.

The new guidelines give water commissioners and division engineers direction on what to do when encountering waste.

Asked, during a break in a Colorado Water Conservation Board meeting in Crested Butte in July, if he was comfortable with the phrase “don’t take more than you need” as shorthand to describe the concept of “waste” in Colorado, Rein said he preferred “don’t divert more than you need.”

“‘Divert,’ that’s clear to me,” he said. “That means taking water out of the river, or taking water off the main ditch. And what we mean by ‘what you need’ is to satisfy that beneficial use that your water right is based on.”

A division engineer in the Yampa River basin, pointing to a headgate on the Meeker Ditch, which had been determined to be over-diverting in 2014.

‘Waste’

The new internal guidelines are officially titled “Internal guide to understanding ‘waste’ and the determination of ‘waste’ associated with irrigation, as that term is used in the definition of beneficial use.”

There are some stern statements in the new internal guidelines, including that it is against Colorado law to divert more water from a river into an irrigation system than is “absolutely necessary.”

“Statutes provide that a person shall not run through his or her ditch any greater quantity of water than is absolutely necessary for irrigation, domestic, and stock purposes to prevent the wasting and useless discharge and running away of water,” the guidelines say.

Rein said the internal guidelines should provide statewide enforcement consistency and serve as a public clarification of the agency’s policy on identifying and enforcing waste.

“It really helps us to have that go-to document to explain it,” he said. “This gives us the best way to communicate to water users, ‘Here are the important considerations when it comes to waste.'”

The guidelines define waste as “diverting water when not needed for beneficial use, or running more water than is reasonably needed for application to beneficial use.” And the guidelines seek to distinguish between “efficiency” and “waste,” Rein said.

“Efficiency is an objective measure,” he said. “It’s an equation. It’s the amount of water consumed divided by the amount of water diverted for that purpose.”

However, he said a higher-efficiency irrigation system can still waste water by over-diverting, while a lower-efficiency system might be diverting and irrigating in a manner that is not wasting water.

And when it comes to determining if someone is wasting water, there is no equation, no formula.

“There is no number,” he said. “There is no amount of tail water. There is no amount of runoff or ponding or deep percolation that you can identity. It is a subjective call.

But the water commissioner can look at the irrigation practice and look at the diversion. And if that same … crop can be satisfied with a reduced diversion, then that satisfies the definition, or identification, of waste.”

Well-tended fields along the White River west of Meeker irrigated by the Meeker Ditch. In 2014, the ditch was directed by the division engineer to divert less water at its headgate.

Reasonable?

The guidelines also discuss seepage in irrigation ditches, overtopping of ditches, or tailwater spilling out of an irrigation system, and say there is a point where too much of each is “unreasonable.”

And the guidelines say it does not matter if a call from downstream senior rights is in effect or not; there can still be waste.

And, of importance to water rights owners, that wasted water should not count in a historical use analysis, which ultimately determines how much of a water right can be transferred or sold for another use.

The guidelines cite several reasons why people over-divert water, including trying to protect a water right from a claim of abandonment, trying to maximize the future potential value of a water right in a sale or transfer and failing to apply adequate labor to an irrigation system.

It can even occur “when a water user diverts more water than is needed based on the mere fact that they can.”

Rein acknowledges that when it comes to determining waste, a lot depends on the layout, construction and management of a given irrigation system. The guidelines also recognize that it can take more work to use less water, due to factors such as the need to frequently adjust distant headgates.

“Diverting more water than can be beneficially used because of the labor involved in diverting less water but requiring more time and labor to do so may or may not be considered an acceptable practice,” the guidelines state. “Regardless, an irrigator has the responsibility and duty to divert only that amount needed and is responsible for being a good steward of the resource.”

The guidelines also address the practice of over-diverting in an effort to increase the future potential value of a water right.

“There is a misperception by some that by maximizing the amount of water diverted, regardless of the need, one can enhance or preserve the magnitude and value of a water right in a future transfer or protect it from some other reduction such as through an abandonment proceeding,” the guidelines say. “Diverting more water than can be beneficially used to avoid abandonment is not considered an acceptable practice and will generally be considered a wasteful practice.”

Editor’s note: Aspen Journalism is collaborating with The Aspen Times and the Glenwood Springs Post Independent on coverage of rivers and water. The Times and the Post Independent published this story on Wednesday, Aug. 16, 2017.

@COindependent: Farms could help solve Colorado’s water shortage. So why aren’t they?

Feature photo of the Little Cimarron River by the Colorado Water Trust

From The Colorado Independent (Marianne Goodland):

Colorado’s looming water shortage would be easier to quench if farmers and ranchers were willing to part, if only temporarily, with some of their supplies.

But most are not.

“I’m in agriculture to produce, not to sell or lease water,” said Logan County farmer Gene Manuello.

The state’s water situation can be boiled down to three simple factors.

One is numeric: Agriculture slurps up as much as 89 percent of available water in Colorado, compared to municipalities and industry, which use 7 and 4 percent, respectively.

The second is power: Farmers and ranchers typically hold senior water rights that trump the junior water rights held by cities, suburbs and manufacturers. In Colorado, and in most western states, the first person to claim the water right gets to use it. Everyone else and their water needs come next on the priority list. The arrangement is known as the doctrine of prior appropriation, and it’s been the defining principle of Colorado water going back to the 1850s, before we were even a state. Our byzantine system of water laws favor farmers and ranchers and essentially encourages them to use all the water to which they’re entitled, or risk losing it.

The third factor is shortage: Colorado’s current population of 5.6 million people is expected to soar to as much as 10 million by 2050. Estimates show that, if water supplies aren’t reconfigured and redistributed by that time, demands caused by climate change and urban and suburban growth will leave the state looking more like desert Nevada than semi-arid Colorado.

Colorado’s looming water shortage is projected to be about one million acre-feet of water per year. A family of four, on average, uses about a half-acre foot of water per year, or about 163,000 gallons of water per year. So a million acre-foot shortage would impact virtually every Coloradan and in every way of life: farmers, city dwellers, businesses, oil and gas drillers, environmentalists, birders, anglers, rafters, kayakers and everyone else who values the health and vibrancy of Colorado’s rivers.

Almost all of the new residents expected in the next three decades, possibly another four million or more, are likely to settle on the state’s Front Range and its urban population centers. That underscores a longtime conflict in Colorado’s water landscape: While 80 percent of the water in Colorado is west of the Continental Divide, 80 percent of the population is on the Eastern Slope, mostly in the Front Range cities between Fort Collins and Pueblo. That fact is at the heart of decades of angst for Western Slope residents who believe the Eastern Slope wants all their water, especially from the Colorado River, versus those on the Eastern Slope who point out that most of the state’s agriculture is based on their side of the Divide.

Gov. John Hickenlooper unveiled Colorado’s first statewide water plan in November 2015 as a blueprint for finding a massive amount of water to keep up with growth and climate change’s effects on water supplies. Although the plan lacks specifics, it will rely largely on a host of possible solutions from municipal water users and from industrial users, which generally have the most junior water rights in the state.

The water plan puts a strong emphasis on keeping farm- and ranchland intact in an era of unprecedented growth. By 2050, the state estimates that irrigated farmland could shrink from 3.5 million acres currently to about 2.7 million acres. The largest hit is expected in the South Platte River Basin, which covers most of the northern Front Range and northeastern plains, and includes seven of Colorado’s ten most productive agricultural counties. The South Platte Basin holds 80 percent of the state’s population, but only 20 percent of its water supply. Growth along that corridor is expected to take out of production up to 35 percent of irrigated acreage in what Hickenlooper says would be a big blow to Colorado’s farm economy and culture.

For all its emphasis on the need to preserve farms and ranches, Hickenlooper’s water plan also recognizes that agricultural water needs to be at least part of solving Colorado’s massive water shortage in the next three decades. It is banking on a host of ideas for temporarily transferring water from farms and ranches to quench other, pressing needs. The state says those methods could glean 5 percent of the state’s projected shortfall. That is, if agriculture is inclined to participate.

But, at least so far, interest has been tepid. Farmers and ranchers are reluctant to embrace new practices, fearing that Colorado’s use-it-or-lose-it system of water law will strip their long-term water rights.

Colorado’s future water demands pit agriculture’s massive water consumption against virtually every other need for water out there.

Share and store alike

To find the water for cities, suburbs, towns and industry, yet still keep agriculture viable, the water plan borrows on an idea that southwestern states have been using for a decade: alternative transfer methods, or ATMs.

In one method, known as rotational fallowing, farmers forgo planting and irrigating their land for a growing season and lease the water saved, over the short term, to utilities or districts that serve cities and towns. Say, for example, a farmer has rights to 100 acre-feet of water. One acre-foot is about 326,000 gallons, or enough water to supply two families of four for a year. That farmer decides to lease 10 acre-feet to a city for one growing season, maybe cutting back on the acreage of winter wheat planted. The farmer is paid for that water, which in a time of low wheat prices may be more valuable than the crop itself and the city receives, at least temporarily, enough water to satisfy 80 people for a year.

The state invested close to $6 million between 2009 and 2017 into encouraging farmers and other water users to participate in agricultural transfer method programs, dating back to the authorization of these grant and pilot programs in 2007.

Agricultural water transfers have been a way of life for Chris and Mary Kraft, who operate two dairy farms and grow 900 acres of corn and hay near the city of Fort Morgan. The Krafts have for the past 20 years leased 2,500 acre-feet of their water every year to Xcel Energy for a nearby power plant. Neighboring farms also participate in that lease program. In dry years, Chris Kraft said in a recent webinar, he can tap into nearby Jackson Lake for water to sustain his crops, if needed. Other farmers may have to dry up a portion of their land in order to meet their obligations to Xcel. But in wet years, such as the last three, the lease payments go to make improvements – including conservation measures – to the ditch system that transports the water to farms and the power plant.

“The whole community benefits from the arrangement,” Chris Kraft said.

Transfer methods are an alternative to “buy and dry” – a practice in which farmers and ranchers sell their water rights to cities and stop raising their crops. The choice comes down to whether to sell out and use the profit for retirement, or to, as the Krafts do, temporarily lease water and receive an annual payment from the cityfolk who are thirsty for it. One option irreversibly dries up the land, and the other keeps it in production and preserves families’ roots on their farms.

Photo of Crowley County by Jennifer Goodland

Related: Buying and drying: water lessons from Crowley County

Those roots are embodied in the words of novelist, environmental activist and farmer Wendell Berry, who in his book Bringing it to the Table, asked, “Why do farmers farm, given their economic adversities on top of the many frustrations and difficulties normal to farming?

“As always the answer is: ‘Love. They must do it for love.’ Farmers farm for the love of farming. They love to watch and nurture the growth of plants. They love to live in the presence of animals. They love to work outdoors. They love the weather, maybe even when it is making them miserable. They love to live where they work and to work where they live… They love the measure of independence that farm life can still provide.”

As Chris Kraft sees it, water transfers could in the long run be a lot more costly to cities than they anticipate. He pointed out that transferring water rights in Morgan County, for example, means that cities like Aurora that are leasing the water have to set up pipelines and pumping stations because they’re at a higher elevation from the farmland. That means the true cost of water transfers comes not just in paying the farmer for the lease, but also paying for the infrastructure and electricity to operate the pumping stations. As the old adage goes, “water runs uphill to money.”

The better solution, he said, is to store water in underground aquifers (which is done by pumping water into those aquifers) so that in wet years, excess water can be stored and then available in times of drought. That kind of storage is available: Colorado has four major underground aquifers, all located along the state’s Eastern Slope. A series of bedrock aquifers that stretches from Greeley to Colorado Springs and from the foothills to Limon has been identified as a strong possibility for storage in future years.

“The state needs some kind of alternate storage to make up for the new people moving here,” Kraft said. “It won’t be cheap. And when there’s a high demand situation, the last drop of water will be the most expensive.”

Storage first, ATMs second is also the view of Joe Frank, who manages the Lower South Platte Water Conservancy District, based in Sterling. Frank said the state needs to capture and store its available water first, noting that water coming out agricultural transfers still needs a place for that water to be stored.

In good years, Frank said, the South Platte has water available that isn’t already committed through interstate agreements or through local water rights. An agricultural water transfer should act as a way to bolster water supplies in years when the water isn’t as plentiful. “Storage should be the focal point,” Frank told The Colorado Independent. He believes ATMs should be part of a combined coordinated project with new or refurbished storage, such as underground aquifers. “Otherwise you put a lot of pressure on drying up agricultural land. Even though it’s an ATM, it’s still taking ag land out of production. The less we can do that, the better.”

For Manuello, who has been growing corn and hay and raising cattle since the 1970s near Sterling, water leasing undermines the very reason he works in farming and ranching. “I believe in agriculture and ag production, so any process to take irrigated acres out of production doesn’t work for me.”

Although he understands that leasing water temporarily helps keep some farms going, Manuello said the state’s inclusion of ATMs in its water plan sends a strong message to farmers that population growth should come at the expense of agriculture. Until the state exhausts other options for gleaning and storing more water, he said, “I have a problem taking water off the land or even promoting the idea” of ATMs.

Those who watch the growing use of water transfers don’t see them as a magic bullet, but more of a compromise and one that won’t fix the problem of 100,000 new Colorado residents every year.

Carlyle Currier, a Western Slope cattle rancher, told The Independent that some in the agriculture community worry that ATMs are just a slower way of putting farm and ranchland out of production. But as an alternative to “buy and dry,” ATMs can provide farmers and ranchers with, at least in the short term, “the chance to retain ownership of their water rights” and at the same time keep their farm and ranches sustainable, he said.

A hard sell

Aside from heartland ideology, there are market and meteorological forces at play that help explain why agricultural water transfers aren’t catching on.

On the face of it, you’d think waning commodity prices would drive up farmers’ interest. Some of the state’s biggest crops like corn and wheat are at their lowest prices in 20 years. Beef prices also are lean. The value of farmers’ and ranchers’ water rights often exceeds the value of what they’re growing. You’d think growers driven financially to consider temporarily leasing their water under ATMs should be able to find willing buyers.

But that’s not the case, at least some parts of the state.

ATM pilot projects have been under way for the past six years in the Lower Arkansas Valley Water Conservancy District, which encompasses most of southeastern Colorado. The district’s executive director Jay Winner said he has 5,000 leases for water available from local farmers eager to temporarily lease their water rights to cities to offset the hit from low commodity prices. But no one wants them right now, Winner said, largely because the state is not facing drought conditions or water restrictions for the first time since 2012. The only interest he has had is from the Security Water District south of Colorado Springs, which is battling contamination in its water from toxic chemicals believed to come from a nearby military base.

The Colorado Water Conservation Board – the state agency that oversees water and administers agricultural transfer programs – has identified other significant barriers ATMs must overcome in order to succeed. In addition to the costs of building pipelines and storage, there are the potential high costs associated with transferring water rights, which are tied to the process of gaining approval through the state’s water courts. Changing a water right can take up to five years and cost hundreds of thousands of dollars, according to Greg Baker of Aurora Water. Another barrier is that constantly switching farm and ranchland in and out of production can create soil and weed problems that could lower farmers’ lower crop yields and hurt their bottom line.

Perhaps the most significant barrier is a desire by water providers, such as municipal water utilities, to find permanent water supplies rather than the temporary water provided by an ATM. Cities – and the developers building in them – are looking for reliable, sustainable sources of water rather than quick fixes that come at the whims of farmers and ranchers, and with the unpredictability of how much it rains or snows year to year.

But these temporary transfers do serve a purpose, according to Baker. Sometimes temporary is better, he indicated, because it’s cheaper to lease water than to obtain permanent water supplies, and all costs are passed along to customers. Even then, however, temporary transfers can take a lot of time; Baker pointed to an example from 2003 when Aurora wanted water leases from the Arkansas Valley to solve that year’s drought. By the time the water finally reached Aurora, it was 2005 and the drought was over. The water was used to refill reservoirs depleted by the drought, so it didn’t go to waste and did work to their benefit, he said. “Leases are good for hedging our bets” for future water shortages, Baker said. But he added that there haven’t been enough of those leases for Aurora Water to determine just how practical they can be.

Learning to ‘play nice’

In April, the Colorado Water Institute at Colorado State University released a report that looked at the future of agricultural transfer methods.

Brad Udall, one of the report’s authors, said that while these methods won’t quench all Colorado’s water needs, the water plan likely won’t meet its goals without them. There should be a way, he mused, to carry out ATMs that persuades long-feuding agriculture and municipalities they “can play nice together.”

The “water world is remarkably conservative, as it should be,” Udall said, and ATMs are relatively new. “And whenever you have that conflict, you will have a hard time getting a foothold [in making changes]. What we really need are good cases where it works.”

As a case in point, Udall – a member of The Colorado Independent’s board of directors – pointed to a project known as the Super Ditch in the Lower Arkansas Valley Water Conservancy District. The ditch is a water-leasing collaboration among nine water districts that took about seven years of stop-and-start, often painful negotiations. Udall noted that the state engineer put 60 conditions on one of the proposed deals tied to the Super Ditch. Water from the Super Ditch agreement flows to Fountain and Security, south of Colorado Springs, and in Fowler, in Otero County in southeastern Colorado.

The other part of the problem, and it’s one inherent to water, Udall said, is that every deal is different. The Water Institute advocates for some continuity among these deals, which would help reduce the costs of reaching legal agreements between teams of engineers and lawyers. Those costs can become “barnacles on the ship of commerce,” Udall said.

“They can overburden and eventually kill deals that would otherwise work.”

Recognizing that ATMs will be necessary in helping to solve Colorado’s water woes, the state has been more than willing to invest in them and fund efforts to educate farmers in hopes that they’ll overcome some of their reluctance. The Colorado Water Conservation Board has put $1 million annually into ATM grants since 2009. One grant, to the Parker Water and Sanitation District, allowed Colorado State University to set up farm demonstration on irrigation patterns for corn crops, which reduced water use by 30 to 40 percent. The Super Ditch made 500 acre-feet of water available through rotational fallowing. Another concept, known as water banks, lets farmers and cities “bank” water in an existing reservoir, without risk of losing water rights, and allows other water users to tap that water for a negotiated price.

Another transfer method that focuses on growing water-efficient crops, which frees up water for leasing, hasn’t been well received because farmers raise concerns that they lack the expertise or even the equipment to grow these different crops. With the average age of a Colorado farmer at 59, that’s not a small ask. Colorado’s two largest commodities – corn and wheat – are considered water-intensive crops; water-efficient crops that can be watered more efficiently include vegetables or the grain sorghum, which can be used for cattle feed in place of corn or wheat.

Then there’s deficit irrigation, a method that requires a crop be watered just enough to produce minimal yields, but which farmers say translates into minimal prices.

Water transfers may not yet be the boon in agriculture that state officials would like, but the environmental community is definitely taking an interest, as a way to shore up stream flows in some of Colorado’s jeopardized waterways.

One good example is taking place on the Little Cimarron River, a tributary of the Gunnison River that flows between Gunnison and Montrose most of the year. But the Little Cimarron goes dry in the summer, leaving its plants to wither and threatening its renowned trout habitat.

In an effort to improve the stream flows, the Colorado Water Trust is working on its first-ever permanent sharing of water that would boost stream flows in waterways that typically go dry, and in turn endanger the river’s ecosystem. The alternative transfer method planned for the Little Cimarron relies on temporarily using the water from nearby foreclosed land, formerly a farm near Cimarron (east of Montrose), that was purchased by Western Rivers Conservancy, which gave the water rights to the Trust. A smaller portion of those water rights were sublet to the Colorado Water Conservation Board, the state agency that awards grants for ATM pilots.

Under the plan, the farm’s water will be diverted during the driest times of the year into the Little Cimarron, allowing for enough water – and at a cool enough temperature – to provide a sustainable habitat for trout. The Trust’s Amy Beatie says her organization has a “projection tool” that indicates the best time to divert water into the river and how much is needed to maintain its flows.
Beatie acknowledges that water transfers off of agricultural land has its detractors. She pointed out that some of the pushback comes from long-standing beliefs about state water law.

“We got good at moving water out of rivers but there’s no provision [in state law] to protect rivers,” especially once those river flows drop to critically low levels. “The Constitution says the right to divert [water] shall never be denied,” she said, and that tells water users “take all you want and flat-line rivers across the state.”

While Colorado is a bit late to the game of protecting its rivers, Beatie said, climate change and population growth are moving the state forward on discussing ways to help restore or maintain rivers.

Says Beatie: “If everyone in [the water] community is willing to give up a little, we can look at restoring flows in other rivers.”

Water markets, prior appropriation

Flood irrigation in the Arkansas Valley via Greg Hobbs

From Water Deeply (Mark Squillace):

AS WESTERN STATES grapple with the best way to allocate dwindling water resources to meet multiple needs, water markets have emerged as one tool. But the idea is not without critics, such as Gary Wockner, who wrote a recent op-ed for Water Deeply about his skepticism that water markets will protect Western rivers.

Wockner raises three concerns with water markets: They commodify nature, there’s a lack of information about how much water they can really save and they skew funding to larger advocacy groups at the expense of others.

I see things differently.

Water markets don’t commodify nature. Rather, it is the prior appropriation system of “first in time, first in right” used through much of the West that gives private water users vested property rights in water. That is the root cause of this problem. It is entirely fair to criticize the prior appropriation system and if we could do it over I would advocate for a temporal permit system that protects the public interest in water from the outset and allows for periodic adjustments to these water permits as new information becomes available as to how to better protect the public interest in water resources. But that is not the world that we live in and it is unrealistic to think that will change – at least in the short term.

When it comes to information, we know enough already to show that the potential for marketing is vast. Current law – not lack of information – is the main obstacle to moving water efficiently. I have written on this topic and so perhaps have my own set of biases, but I believe that incentivizing crop switching, deficit irrigation and rotational fallowing by streamlining water transfers could yield vast quantities of water for new consumptive uses as well as non-consumptive ecological needs.

With regards to funding these projects, we should all be wary of the role that private foundations play in displacing the traditional role of government, ostensibly to promote the public good. And while we should be grateful for the positive work that private foundations have done to benefit our world, we must also acknowledge that private foundations have their own agendas, and their priorities may or may not reflect the public interest as that term might be defined by public agencies.

Nonetheless, so long as government fails or refuses to fund and address public needs adequately, foundations will have an important role to play. That does not mean that we must simply accept the choices that foundations make. On the contrary, we should demand that they be transparent and operate under standards that are fair. But we should judge the work of foundations on the merits and not be unduly suspicious of their motives. (To be clear, my work on water markets has not been funded by private foundations.)

This leads me to the broader point that Wockner raises about the need to reform our laws to protect “the rights of nature.” While I share a passion for protecting the ecological health of our water systems, I am skeptical about the prospects for an Ecuadorian-style constitutional provision.

The good news is we do not need it.

For the most part, we have the tools under our existing law that would allow us to protect the public values associated with water. We just need to use those tools in more creative and effective ways. Most prominently, in every state with positive water law (statutory and constitutional law), water is understood to be public property and, in most states, that translates into a trust responsibility on the part of the state to manage water for the benefit of the public.

Most states further demand that water resources be managed to protect the public interest. (The only state to have denied this responsibility is Colorado – the home state that Wockner and I share.)

Properly understood and properly applied, the public interest/public trust obligation offers the prospect that the communal values in water that we all share – to meet basic human needs, and to protect aesthetic, recreational and ecological needs – must be met first, before private rights are protected. Viewed in this light, and subject to these constraints, water markets are simply a mechanism for reallocating private water rights once public rights have been fully protected.

To be sure, many states have effectively ignored their obligation to manage water resources in the public interest. Other states have defined the public interest in ways that allow for balancing public values with private rights, as if they can be placed on an equal footing. This approach misconceives the nature of the public interest in water resources management. Only by first protecting those shared, communal values in water can we truly protect the public interest.

Rather than chasing a constitutional right of nature that seems unlikely to be realized, we should use the tools that we already have to rethink our approach to managing water resources. This will pose its own serious challenges; but because it is grounded in existing law, it stands a far greater chance of success. Let the hard work begin.

The Colorado River District’s take on Aspen’s conditional storage rights — @AspenJournalism

This map from 1984 is one of the few ever published that puts the Maroon and Castle creek reservoirs into the context of the city’s overall water system.

From Aspen Journalism (Brent Gardner-Smith):

Given the ongoing discussion in Aspen about the city’s conditional water storage rights tied to two reservoirs on Castle and Maroon creeks, we thought it would be informative to interview Chris Treese, the external affairs manager of the Colorado River Water Conservation District, which works to protect Western Slope water supplies.

Treese oversees the River District’s legislative and regulatory governmental relations in Denver and Washington, D.C. Treese, who has a master’s degree in economics, describes his current job responsibilities “as everything you don’t want lawyers and engineers doing,” but he still spends much of his time discussing the finer points of existing and proposed water law.

The city of Aspen filed two due diligence applications on Oct. 31 in Division 5 Water Court in Glenwood Springs, seeking to extend the conditional storage rights for Castle and Maroon creek reservoirs until 2022. The city originally filed for the rights in 1965. Ten opposers have filed statements of opposition in the two resulting diligence cases, and the next status conference among the parties is set for August 10, 2017.

We spoke with Treese on April 25 in the River District’s conference room in Glenwood Springs.

The resulting transcript has been edited for clarity.

BGS: Chris, thanks for doing this. It seems like the River District is well-positioned to shed some light on conditional water storage rights. The River District both holds conditional water rights and it also has walked away from conditional water rights, including on the Crystal River in 2013 which were part of the West Divide Project. And the River District is not involved in either of the two water court cases now underway in response to Aspen’s due diligence filings for the two reservoirs.

CT: Correct.

BGS: People have drawn parallels with the Crystal River rights that the River District abandoned, which were tied in part to two large dams, and the option, if you will, for Aspen to do the same. What’s similar and what’s different about the River District’s former rights on the Crystal and Aspen’s conditional storage rights on Castle and Maroon creeks?

CT: One of the similarities is they are both conditional water rights and simply by virtue of being conditional, they are what a conditional water right is, a placeholder in the priority system. But frankly, the differences leap to mind.

One difference is the ownership, as Aspen is a municipality, and municipalities have a different standard for diligence. The West Divide Project did not have a municipal purpose. It was originally, and remains, part of a federal project. And it was an out-of-basin diversion with its own impacts and concerns. I think those differences are significant.

The advantage, if you will, of having a municipal right, is you benefit from what’s known as the great and growing cities doctrine. In contrast to an agricultural or an industrial right with some fixed parameters around acreage or location and purpose of use, the courts have recognized that municipalities grow. And the responsibility of a municipal water provider is to provide water for present as well as the future.

As such municipalities have enjoyed almost unfettered ability to hold on to water rights and to perfect their conditional rights as part of their portfolio, either because they are growing or because they may grow. So the great and growing cities doctrine has provided an essentially unconstrained ability for municipalities to hold large quantities of water rights.

BGS: Wasn’t that latitude more closely defined by the two recent Supreme Court decisions known as the Pagosa decisions?

CT: Yes. So now you can’t say you will need the water in 100 years, but you can project need out 50 years. The Supreme Court found that 50 years is a reasonable planning horizon, and it recognizes that water projects take a long time to develop and water rights can be evermore critical during a period like 50 years. It also said that there has to be some common sense, some historical reality, to the projections over that 50-year period.

BGS: You mean you can’t just say Aspen’s population is going to from 7,000 to, say, 100,000 people, because, maybe it could.

CT: The applicant in the Pagosa cases – Pagosa Water and Sanitation District – were projecting 8% annual compounded growth for 100 years, and that was seen as overly aggressive by the court.

BGS: So there is a great and growing cities doctrine, which Aspen presumably can benefit from, but there’s also now some limitations placed on it from the Pagosa cases, primarily concerning reasonable growth projections.

CT: Right.

BGS: It strikes me that one of the similarities is the absurdist factor in both the Crystal River and the Maroon Creek situations. The dam forming Osgood Reservoir on the Crystal River would have flooded the town of Redstone, and Maroon Creek Reservoir requires a 155-foot-tall dam within view of the Maroon Bells. How should someone consider the relative impossibility of building such projects?

CT: One of the challenges to conditional water rights is that you have to prove diligence on the conditional right as filed. In the case of the Crystal it was a conditional water right for a reservoir that would have flooded a large part of the town of Redstone, if built exactly where and to the size as filed.

But the fact is that a water right, conditional or otherwise, can be changed, can be modified. It still would need to meet some of its basic purposes, but you could go into the water court and say, “There’s now a town of Redstone there and before there wasn’t a town of Redstone. And now the highway is there” and seek changes.

In fact, when the River District and its West Divide District partners looked at the Crystal conditional rights, we looked at how those conditional rights could be useful to the Crystal River valley, in contrast to their originally decreed purpose of transferring water out of the Crystal basin. But we knew we would still have to file diligence on the project as originally decreed.

BGS: So how flexible, how portable, are conditional water rights and their priority dates? There’s been ideas floated with the Castle and Maroon rights – that a smaller reservoir could be built, that they could be transferred to an underground storage facility on the city golf course, etc.

CT: What you can’t do is come in to a diligence filing and say, “We’ve talked about this.” That’s not diligence. You would have had to do more than talk about it, you would have had to at least study it.

BGS: Have studied moving it, for example?

CT: Yes, having studied moving it or using it for a different purpose at a different location. But it’s always up to the water court to find what’s adequate diligence, and they can look back at the original project and say, ” I think you’re talking about a new and different project. You need to file for a new water right.” That’s a risk.

BGS: Is there a threshold for what constitutes a new project?

CT: No.

BGS: Can we explore the standards of diligence? It seems there is a difference in what the water court might consider as diligence and what the average person might understand as diligence.

CT: There is a definition of diligence. It’s broad, and fairly non-specific in the legislation.

BGS: Is the diligence standard excused because you’re a municipality? Or does it still apply?

CT: It absolutely still applies. You must demonstrate to the satisfaction of the court that you are moving diligently toward development of the conditional water rights.

BGS: In the last clause of the city’s diligence application for the Maroon Creek Reservoir, it says, “applicant city of Aspen having demonstrated that it has steadily applied effort to complete the appropriation of the Maroon Creek reservoir conditional water right in a reasonably expedient and efficient matter under all the facts and circumstances … ” should be allowed to hang on to the rights for another six years.

So if someone has “steadily applied effort” to complete the appropriation of a conditional storage water right, does that means they’ve steadily applied effort towards storing the water in question?

CT: Yes.

BGS: Which also means they’re steadily applying effort toward building the structures, or dams, that would actually store the water in question?

CT: Well, the courts recognize that developing a reservoir is not as simple as getting a bunch of spray-painted shovels and having a ground-breaking ceremony. There are a lot of studies, and permits, and financing, and there’s a lot that goes into the early conditional period when planning for a reservoir.

BGS: But “steadily” applying effort means you’re moving towards actually storing the water some day, right?

CT: Yes.

BGS: It’s doesn’t mean you’re just hanging on to the water right for the sake of hanging on to the water right?

CT: Colorado water law prohibits speculation.

BGS: To be clear, if you’ve steadily applied effort to “complete the appropriation” of the conditional water right, then you’re moving towards storing the water. And if you are moving toward storing water, you need to be moving toward building a structure, a dam.

CT: Yes, right.

BGS: That’s what “complete the appropriation” ultimately means, right?

CT: Yes it does. Storage is clearly the end game, but diligence doesn’t specifically mean you’ve applied for a permit, or that you’ve hired bond counsel. There are a lot of early steps that may qualify as diligence.

BGS: Aspen, for example, does not claim it has been studying the reservoirs themselves, but instead it says that work on any part of integrated water management system counts as work on the whole system. So something like repairing pipes in downtown Aspen can count as steadily applying effort toward building the dams and reservoirs?

CT: Every water system is an integrated system in one form or another.

BGS: So what’s a citizen to make of that? In Aspen’s case, there appears to be little, if any, actual diligence on aspects of the projects that commonly comprise a feasibility study, such as water supply and demand studies, geological studies, construction analysis, permitting review, etc.

CT: I don’t know that.

BGS: Well, I’ve asked for such studies, and none have been forthcoming. What the city has told the court is that the reservoirs are part of their integrated water management system, they’ve been working on other parts of the system first, and work on one part of the system is work on all parts of the system.

That strikes me as a bit of a loophole, or at least a low bar. But how bulletproof of a legal argument is the integrated water management argument? Is that all the state requires? If you develop a reuse system at a wastewater plant, say, you can legitimately say you’ve also made progress on building two reservoirs?

CT: Nothing’s bulletproof, it’s up to the water court. And I’ll keep saying that. It’s to the satisfaction of the judge in water court. Or, actually, to the water referee and then, if necessary, the water court judge.

I can tell you the history of the integrated water system provision. The oil shale sector was the primary proponent for the amendment to that section of the law. And they said if they were working on other aspects of a system, such as a pump station and a pipeline, then those were physical manifestations of diligence toward developing their overall system.

If say, a pump station was for 20 cubic feet per second, but their conditional right allowed for 100 cfs, they didn’t wish to see the larger amount challenged, as they were simply working in a steady and progressive manner toward eventual development of the entire system and perfection of the conditional right.

BGS: So does a judge have to decide, in a claim of being in an integrated water management system, whether there’s actual progress being made in that claim?

CT: Yes. I think the court would ask, is there a reasonable nexus to the diligence application for the water right in question? Is one action leading to another? The other part of steady progress is that it cannot just be in the last week before you filed. You do have to show you were engaged in steady application of diligence efforts.

BGS: So even though it’s within the confines of an integrated water management system, there still has to be a nexus to the ultimate development of completing the appropriation.

CT: Yes.

BGS: So can Aspen claim it worked on one part of our system, even though it bares little relationship to the actual potential reservoirs, and still claim that as steady effort?

CT: That’s up to the water judge.

BGS: There is no clear standard?

CT: Well, in the diligence applications that I’m familiar with, you include all of the efforts that you feel are relevant. For example, when the River District files for diligence on conditional water rights, we often include details of our work on the recovery program for endangered fish, because it’s critical to the way the river system works today. It may not have a geographic nexus to the conditional filing in question, but it has a hydrologic nexus. And so we hope the water court recognizes our work is a necessary element to be able to ultimately develop the water right.

For example, if a city was going to build a reservoir someday they could look forward to having to go through a NEPA (National Environmental Policy Act) review. As such, they will need to study a range of alternative measures they could take, such as making sure they don’t have leaks, water conservation efforts, pricing, all of that.

You have to accept that water development is an enormous challenge, and you’re going to have to show that you’re using your existing supply to its maximum benefit and efficiency before seeking permits. So a water provider might include in an application for diligence the work done today on those types of activities, even though they don’t appear to be physically linked to the reservoirs. And they can count it as work toward a future reservoir, because it’s related.

BGS: Do you think the city should have been more actively studying its two potential reservoirs?

CT: You have to allow any conditional water right owner to decide what their own timing is that leads to development.

BGS: Okay, but is there any requirement for work to be done on a specific site or project basis? Even if you’re doing other stuff, do you still have to study the project at some basic level?

Because, in this case, it doesn’t appear Aspen has done much, or is doing much, investigating of the feasibility of the reservoirs themselves. And if the city thinks it might actually need the reservoirs, shouldn’t city officials be studying them?

CT: Not necessarily. You have to allow that Aspen has accepted from 1965 that these reservoirs may be necessary. And what they have asserted is that what they’re doing is working on the other elements of their integrated system that require immediate work, and in the succession of development and maintenance of their system, those are their priorities.

The fact that I filed for a reservoir, say, on Three Mile Creek, doesn’t mean that I have to keep drilling every six years to see what the soils look like on Three Mile Creek.

BGS: Yes, but should you have drilled once? No drilling, for example, has ever been done on the location of the Maroon Creek Reservoir, that I can find or that the city can produce.

CT: Eventually you will, but there are many other things required before eventual storage construction. Personally, I don’t know what the order is of when drilling or soils testing is required.

BGS: Wouldn’t you want to know what a drill test says about a key factor in a reservoir, which is where the bedrock is?

CT: Yes. You will.

BGS: Not now?

CT: Maybe not yet. This is probably not the first thing I need to know. Not everything is a study for fatal flaws, especially if you accept that they have a premise around their original filing that this is necessary and appropriate someday. That’s exactly what a conditional water right is.

BGS: It just strikes me as a profound lack of curiosity.

CT: I understand. I think you have a legitimate question as long as you’ll acknowledge that there is a whole series of studies, and hard and soft science steps, that have to be followed before you can get to application, let alone development. Then I think it’s a legitimate question.

BGS: So what’s the average person to make of the larger situation? The city can, in effect, say they are making progress but really, at least in terms of how most people might see the question, they are really not?

CT: Yes.

BGS: I understand then that someone can technically say in water court they are making progress, given the integrated system provision, but it seems to lack a certain integrity from a street corner or real-world perspective.

CT: Well, for example, for the Osgood Reservoir on the Crystal River, the River District didn’t feel we could tell the court “Rest assured, we’re not going to flood the town of Redstone” when the water right as decreed would have done so.

We were, in fact, looking at alternatives, but then it would no longer have been the West Divide project as conditionally decreed. And we would have admitted that to most anybody, except the court. Because if we weren’t going to flood the town of Redstone, by moving the storage right to a more acceptable location, it might be considered a different right by the court.

BGS: So that suggests there is an integrity gap in Aspen’s approach, because they are saying, in effect, “We don’t want to build the dam near Maroon Bells” and yet they are still pursuing the same rights that are tied to the dam.

CT: When you are filing for diligence, you’re filing to maintain the water right’s priority date. And it’s not a secret, and it’s not a lie, that the water right may in fact be developed someday in another fashion for another purpose in another location.

BGS: Well, then, how low are the state’s standards for diligence? If you simply say you’re making progress, and want to keep all your options open, does the court just say, “Okay, carry on.”

CT: Let me acknowledge that conditional water rights are typically not contested. You usually don’t have objectors in a diligence case. And until relatively recently, if a filing didn’t have an objector, including the state of Colorado or anyone else, water courts tended to say, “Nobody’s upset, so no harm, no foul. Continue. Your diligence application is approved.”

Now the bigger filings have had objectors. We’ve had objectors on the Western Slope from eastern Colorado for large filings that were senior to some of the junior aspects of their transmountain diversions. They have had a clear self-interest in attacking these conditional rights, because they would improve the seniority of their junior rights by removing the threat, if you will, of a senior conditional.

But most filings aren’t contested, and uncontested filings are generally approved by the court without much analysis. Admittedly, the court might take exception to that.

BGS: Switching gears, what is the harm in walking away from a water right?

CT: It depends. We maintained the rights on the Crystal because we thought storage in that basin could have been a significant benefit to western Colorado. And our choice to abandon those rights was not as simple as concluding we didn’t need storage there.

We were being challenged in court, and the challenge was to the entire West Divide project. And our partners in that project, the West Divide Water Conservancy District, still intended to pursue aspects of that project that are outside of the Crystal River drainage.

We didn’t want the tail – the potential dams on the Crystal – to wag the dog – the other parts of the project. So we looked at number one, the opposition and the risk to the other water rights outside of the Crystal River basin. And, two, we recognized that if, in the future we still wanted to pursue storage on the Crystal then a new junior storage right would accomplish largely the same goals as those senior rights associated with the conditional filing would have.

BGS: Okay, so the River District made a call to walk away from two large dams. But the city of Aspen seems to always pour cold water on that option by suggesting if they abandon them someone else is going to come in and claim them, and their decreed date of 1971, apparently.

CT: Impossible.

BGS: So if someone else comes in and claims a storage right on Castle and Maroon creeks, it’s going to have a new junior priority date? They can’t come in and claim a 1971 right?

CT: Correct.

BGS: And someone could always still come in and file for a new junior right, whether or not the city abandoned its rights?

CT: Yes, but it’s a very different water right if you’re behind a senior conditional right. And there is the “can and will” test. You may not be able to develop the new junior right if it’s in line behind a senior conditional right. It depends upon the hydrology and how much water is available to store during runoff.

BGS: So if by retaining a conditional senior storage right, you make it less likely that someone’s going to come in and file for a junior right, isn’t that an advantage for a senior rights holder, like Aspen, in this case? If so, that suggests there is value in just sitting, if you will, on a senior conditional right as a preemptive move against future interlopers.

CT: Aspen, or anyone else, may see a strategic value in that approach. But that’s not sufficient diligence. There were a number of people in the Crystal basin who were in favor of water development. Not in favor of flooding Redstone, but who were in favor of water development. And they saw our conditional water rights as a strategic card and said if we didn’t hang onto that water right, then someone like Denver Water could come in and file. But we never said that; we never saw that. It’s not a legitimate or feasible threat. Nor did we see it as a sufficient to present as diligence.

BGS: You mean you can’t protect your water rights unless you’re actually making progress towards completing the appropriation? You can’t just be doing it for strategic purposes?

CT: Correct. You have to be diligently moving toward development. Remember, though, that oil shale has largely maintained its water rights from the 1940s by researching oil shale development. Some would argue there’s no way that they’re moving toward development or perfection of those rights. But the courts so far largely have found that they are.

BGS: Ah, yes, it’s always the court’s call. But how unusual is it to have ten opposers, as Aspen does, in a diligence case? Doesn’t that change things?

CT: It’s certainly uncommon to have opposers in diligence cases. And it’s worth noting that while a city cannot hold onto water rights solely to suit their strategic priorities, opposers can challenge the city’s rights based on their own strategic priorities

BGS: In other words, as an opposer you don’t need to prove standing, you don’t have to show injury.

CT: Essentially right.

BGS: Another outstanding question I have is about storage. The Castle Creek Reservoir would hold 9,000 acre feet of water and the Maroon Creek Reservoir would hold about 4,500 acre feet.

And recently, Aspen City Manager Steve Barwick told the Pitkin County Healthy Rivers and Streams Board, and I quote, “All of this, this whole notion of how much water do we need and how much water do we need to store, and all of that, has been based upon very preliminary analysis. And now it’s time to tighten up the whole analysis and do a rational set of studies so we can have a rational discussion with the entire valley about what are we going to do here. How much storage do we need, and where do we want to put it?”

Given that, why is the city telling the state it needs 14,000 acre-feet of storage if they aren’t sure how much storage they need? How hard is it to determine how much storage a city needs? A recent raw water supply analysis from Wilson Water found the city could meet future needs without storage, even after aggressive climate change projections.

CT: I would suggest that it’s not particularly easy to look 50 years down the road and try to figure out exactly what your needs are going to be.

BGS: So, again, what should a citizen make about the duality in the situation, where the city is telling the state it’s making progress while telling citizen’s it’s the last thing they want to do?

CT: I will say I feel the city’s pain, because while they may not have any actual intent to build that size reservoir in that location, they apparently see a need and a purpose for additional storage. As we did on the Crystal. Were we going to flood the town of Redstone? Not in this day and age. We knew that. Could we admit that anywhere but the water court? Sure. But in the water court, that’s not what you’re able to do.

BGS: So does that speak to the failing of the water court? Or to an issue of integrity?

CT: You keep suggesting that this is an issue of integrity.

BGS: Well, I keep asking.

CT: I think the city recognizes the value, the purpose, and the benefit of storage at large. Storage of some size. Storage in their water supply planning.

BGS: Storage of some size, somewhere, at some point, in some location.

CT: Yes, and that’s what a conditional water right may provide. But it’s not a failing of the court, because it doesn’t, in fact, allow for unfettered flexibility. The court would likely reject a suggestion, say, that a conditional storage right on Castle Creek might be used on Hunter Creek.

BGS: But the city is studying and positioning various potential alternatives, suggesting the rights are quite portable and flexible.

CT: The conditional water right system does allow for movement. But it would likely have to have a junior right if moved too far.

BGS: But no one knows for sure until they go through the process? There’s no standard?

CT: Well there is a standard for that. If you go too far, say if you try to exchange that right to Hunter Creek, it’s going to end up being a new junior right.

BGS: So there’s generally limited flexibility?

CT: Yes. But you never know until you go through water court.

BGS: Can we discuss why the River District has not taken a position, or really, said anything, one way or the other, about Aspen’s conditional water rights? The district is not an opposer, so it apparently doesn’t oppose them, but it hasn’t said, for example, that they think those reservoirs might be valuable for any reason.

CT: Well, we’ve never been asked.

BGS: The city has not come to you? They’ve never consulted with you?

CT: No. Aspen has not asked for help.

BGS: Or sat down and asked you about your experiences on the Crystal?

CT: No. Nor do I find that odd that they didn’t. Montrose hasn’t, and Grand Junction hasn’t. Ute Water is working on developing and permitting storage on the Grand Mesa. They haven’t asked for our help. Others have. Eagle River and Water Sanitation asked for our help in putting together multi-party agreements that years ago resulted in the Eagle River memorandum of understanding, or MOU. Now we’re working on fulfillment of the MOU to develop joint-use, mutually beneficial East Slope-West Slope water.

BGS: Do you feel there’s any harm done if the city’s water rights are abandoned, from a Western Slope water rights perspective?

CT: We have not looked at them.

BGS: With respect, why not? It seems like something the River District would do.

CT: Well, this is what individual utilities do within our 15 county district. They develop their water rights.

BGS: But Aspen suggests there are threats from a Front Range bogeyman, and I wonder if you think a bogeyman is lurking, waiting for the city to give up its rights?

CT: We don’t see this as the bargaining chip that we need to, or have been asked to, help preserve. It’s a tool in the toolbox, perhaps, but we haven’t analyzed exactly how these water rights might be used in the ongoing poker game.

BGS: I’m trying to discern the significance of the River District’s neutrality and silence about the Castle and Maroon creek reservoirs.

CT: I find our position unremarkable. There are many entities that are pursuing diligence or perfection of their water rights. We have no interest in jumping into a situation that has already divided our shared constituents. And Aspen has not asked for our help in their diligence filing, or their studies. So we have no direct dog in this fight.

BGS: So, again, is there a downside to Aspen giving up the rights, as the River District did on the Crystal?

CT: I think it may be important to ask what the opposers are seeking. Are they concerned about a dam in that particular location? If the dam were somewhere else, would they have the same concerns? Are their concerns really about growth? Is the concern that Aspen has, or may have, a vision of its future, that is more crowded than some may accept? I don’t know the answer. Is it that Aspen has said that they want to maintain the instream flow rights? Is it the idea that storage can be used for meeting an instream flow, or enhancing an environmental benefit? What are their motivations? And perhaps most importantly, what happens if they succeed?

BGS: Well, fair enough. I’ll follow-up with the opposers, and they have articulated many of their concerns for the water court referee. But that’s why I asked you what harm the River District sees if the rights are abandoned. Apparently you don’t see any, which says something about the size of the bogeyman.

CT: What does Aspen see? Are there any competing conditional rights in between that if Aspen drops out, somebody moves up the line? If there’s an intervening conditional water right on the Roaring Fork, that would be pertinent.

These water rights may be a bar, or a deterrent, to another conditional rights that couldn’t be developed if these rights were senior. So I think it’s a legitimate inquiry as to whether, say, Pitkin County Healthy Rivers and Streams, has considered what the full implications are to not having these water rights. I don’t know the answer. I’m just saying it’s a reasonable question.

BGS: I agree it is a reasonable question. And a reasonable question to ask the River District, too.

CT: We haven’t looked at it.

BGS: Again, with respect, why not?

CT: Nobody’s asked us, nobody’s suggested it. It’s not a problem.

BGS: But isn’t that in your mission? I have to think that if the River District thought that if these rights were to go away it would harm the Western Slope, you would have said something.

CT: If we thought so yes, if we had looked at it and come to that conclusion. But you’re giving us too much credit.

BGS: I guess so.

CT: We haven’t looked at it. I think if they were pre-compact, or pre-1922, rights I guess it would be more interesting to us.

BGS: Do you think there’s a bogeyman out there as it relates to Castle and Maroon?

CT: I think there’s a much bigger bogeyman in the upper Roaring Fork. Castle and Maroon, hard to picture, but the upper Roaring Fork, easy to see. The evidence is all there.

Rio Grande Basin Ag Producers workshop recap

Pond on the Garcia Ranch via Rio Grande Headwaters Land Trust

From The Valley Courier (Ruth Heide):

Division of Water Resources State Engineer Dick Wolfe tackled the “use it or lose it” concern during the Rio Grande Basin Ag Producers’ Water Future Workshop in Alamosa on Tuesday.

“People think they have got to divert everything under their water right or they will lose it,” Wolfe said.

He said the important thing to remember is historical consumptive use.

Most water in Colorado is diverted for irrigation, “for beneficial crop use,” he explained. Wolfe was involved in compiling a special report issued in February 2016 by the Colorado Water Institute in an effort to educate people on the “use it or lose it” concept.

The report addresses five main concerns: 1) maintaining conditional water right; 2) administering absolute water right; 3) abandoned water right; 4) changing use of a water right from agriculture to municipal use; and 5) implications of conservation program participation.

Wolfe specifically dealt with the fourth concern, changing the use of a water right, during Tuesday’s conference. He explained that water right changes come under dual administration, both from the state engineer’s office and the water court, which adjudicates the water right.

“Any change of water right can be time consuming and costly,” he said.

A change of water rights case has to consider whether the change will injure existing users or use more water than historically used.

Water rights come with restrictions such as the maximum that can be diverted, flow rate and area of land, Wolfe explained. The historic consumptive use is critical in water use change cases, he added, with the historical consumptive use of a water right often being less than the maximum that was allowed to be diverted under the original decree. Wolfe used a hypothetical example of a water right decreed for 150 cfs (cubic feet per second), but only 100 cfs had historically been used to irrigate the farmland, with only 60 cfs actually consumed by the crop and 40 cfs returning to the river. If the owner of the property wanted to dry up the farmland and sell the water right to a factory, for example, the owner could not transfer the full 150 cfs that was decreed in the water right, Wolfe explained. The owner could only transfer the 60 cfs that was historically consumed on that property. The water that has historically gone down the river must continue to do so.

Wolfe said someone might argue that they should divert their entire decreed right, then, but the crop can only consume so much water, and that consumptive use is what can be transferred.

“The measure of that is still historical consumptive use,” Wolfe said. “It’s limited by the amount the crop can consume.”

The duty of water is also something to consider, Wolfe added. If folks are diverting more water than they need, they could be depriving others and causing unintended impacts to the stream system, he explained.

Colorado water law does not permit wasteful water use, and Wolfe said he would be issuing an order in the next few months giving clear guidance on what wasting water means.